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Native Title Corporations

A legal and anthropological analysis

By Christos Mantziaris and David Martin

CONTENTSREVIEWSSUPPLEMENTS

CONTENTS

PART 1 - THE CHARACTER OF THE TITLE

Native Title: The Product of a Recognition Space

Native title as a recognition technique
Recognition and the property law focus
The native title recognition space
Contested meanings attributed to the recognition space
The definition of native title
Recognition and Incommensurability of systems of meaning

Aspects of Native Title Content

Native title is non-uniform
Native title is communal
Native title is inalienable
Native title is subject to future extinguishment
The sui generis rights formula
Reason by analogy to the familiar ('bundle of rights' etc)
Litigation contexts in which content is declared
Procedural context and form of the determination
Identification of the native title group
Recognition of native title sub-groups
The specificity with which native title rights and interests are stated
Evolution in the system of traditional law and custom

PART 2 - THE LEGAL FRAMEWORK FOR TITLE MANAGEMENT

Overview of the Title Management System

The role of various legislative and private instruments
The prescribed body corporate determination
Prescribed characteristics of the native title corporation
Overview of the functions of the native title corporation
Protection of the native title
Salient features of the incorporation statute

Legislative Policy

The incorporation impasse
Policy foundations of the title management system
The legislative objectives
Overview of the legislative history
The choice between individual and collective title-holding
Parliament's view of the relationship between group and corporation
Responsibility for institutional design
The Proliferation of legal relations between group and corporation
The 'juridification' of indigenous relations
Title management and the Racial Discrimination Act
The main policy challenges

The Trust or Agency Relationship

Construction of the trust or agency relationship
Character of the legal interests of group members
Duties of the statutory trustee and agents
Jurisdiction over matters arising under the statutory relationships
The corporation and the declaration of traditional law and custom
Identifying native title group members
Identifying native title rights and interests
May benefits be distributed without reference to law and custom?
Judicial administration of the statutory trust or agency

The Corporation

Foundational problems of the corporate law relationship
The cultural specificity of the corporate governance model
The governance structure of the ACA Act corporation
Membership of the corporation
The general meeting
The board and its duties
Corporate reporting
The regulator's functions and powers
Administration, winding-up and native title management
Defective corporate transactions
Corporate capacity
Corporate authority
Breach of consent and consultation procedures
Accommodating internal group differentiation
Administrative discretion in the incorporation process
The registrar's protective jurisdiction
Available 'self-help' techniques for securing board representation
Is another incorporation statute more appropriate?

Corporate Activity in the Pre-Determination Period

Incorporation in anticipation of a native title determination
Legal problems encountered by pre-determination corporations
Native title application by corporations
Liability for non-ILUA pre-incorporation obligations
The political and economic context of ILUAs
The binding effect of an ILUA: a deviation from contract law
Legal certainty and transaction performance distinguished
Corporation or contract? the politics of choice
The management of mixed obligations and benefit streams

PART 3 - A DESIGN PROCESS FOR NATIVE TITLE INSTITUTIONS

Introduction to the Institutional Design Process

Circumstances and Institutional Setting of the Native Title Group

Broad socio-economic and socio-cultural characteristics of the group
'Structural' features of the native title group
Goals and aspirations of the group
Indigenous organisational culture
The native title institution with indigenous society
The corporation as a site of conflict
Competition for resources
The vulnerability of indigenous corporations
Balancing local and regional imperatives
Localism with indigenous societies
Relationships with regional indigenous organisations
Finance and support for native title institutions

Institutional Facilities and Design Principles

An anthropologically informed analysis of legal facilities
The legal facilities and the native title recognition space
Facility 1: Legal capacity
Facility 2: Legal authority
Facility 3: Identifying the members of the native title groups
Facility 4: Identifying the nature and extent of the rights and interests
Facility 5: Decision-making procedures
Facility 6: Dispute resolution procedures
Facility 7: Accountability to the group and to external parties
Facility 8: Allocation of liability for native title related acts
Eight principles of institutional design

Practical Illustrations of the Design Process

Legal constraints and 'reflective equilibrium' in the design process
A design typology
Type 1: Agent corporation with 'participatory' membership
Type 2: Agent corporation with 'representative' membership
Type 3: Trustee corporation with 'participatory' membership
Type 4: Trustee corporation with 'representative' membership
Ability of types to accommodate economic and other activities

Table of Cases/ Table of Statutes/ Index

Bibliography

This is available only online - see Supplements on this page.

REVIEWS

This text, while published four years ago, remains the most comprehensive publication devoted solely to issues related to bodies corporate, which are established as a result of a determination that native title exists. Despite the technical subject matter, the authors manage to present eminently readable content on what is essentially a highly complex and emerging area of law.

Toni Matulick, Ethos (ACT Law Society), No 194, Dec 2004

… an important work. To date it remains the most substantial and comprehensive work to deal with the complex and vexed question of how Aboriginal groups with native title determinations might best form prescribed bodies corporate to hold and manage their title. …
Part I of the book introduces native title within the Australian context, with some comparison of how this issue has been approached in the Canadian context. … It contains much detail concerning the ways the Australian courts are approaching native title claims, and quotes extensively from judgments that had been made in native title up until the time of publication. Consequently this is a valuable resource to those engaged in native title matters, drawing together common threads of emerging native title law, and identifying disparate threads within the various judgments. … Many of the principles introduced in this section … provide valuable baselines to our understanding of the way native title has emerged within Australia. …
Part II focuses on the ‘legal framework for title management’. As such it is squarely weighed more towards the legal than the anthropological. … As a whole, it contains much technical information focusing on corporations, corporations law, the law of trusts and agency, inconsistencies between sections of the Native Title Act and the requirement within the Act for native title holders to incorporate under the ACA Act, and so on. Much of this section will be of value to legal professionals … Overall what emerges from this part of the work with clarity is that the PBC regulations in the NTA are plagued by internal contradictions, and significantly deviate from mainstream Australian law of corporations and contract as well. …
The authors’ repeated call for the legal reform of native title management institutions, a theme throughout this work, is clearly complelling. Native Title Corporations makes a substantial and very significant contribution to the ‘managerial’ aspect of native title, and I have no doubt that it will remain an important reference work in this area for many years to come.

Anthropological Forum, Volume 14(1), March 2004

On the one hand, [the book] will clarify for native title practitioners what is involved in establishing native title corporations and the legal and policy problems that will be faced; on the other hand, it will provide a check-list of the many points that call for law reform …
The book traces the impact of that incommensurability [of two systems of social meaning which may be wholly or partially irreconcilable], and a range of more specific problems, as it expounds, critiques and proposes reform of the law in a particular area that will become increasingly important; the representation and management of native title after it has been recognised.

Oceania, Vol 73 No 1, September 2003

There is no other book or paper where the legal and practical issues of the creation or operation of prescribed bodies corporate have been considered in as much detail or with as much insight as they are in Native Title Corporations. Anyone seeking to establish a PBC or to operate within one, and who requires more detail than is in the Guide to the Design of Native Title Corporations, clearly needs to obtain a copy of the book.

B M Selway QC, Adelaide Law Review 2002

The book is a rare collaboration between a lawyer and an anthropologist with the result being, in the authors' words, "black letter law informed by policy-oriented anthropology".
A particularly impressive feature of the book is that it describes many phenomena that are experienced by those working in the field of native title, systemises them and deals with them analytically. What has previously been anecdotal, has become the stuff of serious conceptualisation and study ... The work is an undoubtedly impressive achievement.

Native Title News, Vol 5

In their book, Mantziaris, a barrister, and Martin, an anthropologist, seek to redress this neglected area [the question of the legal framework for native title management following a determination of native title in favour of a particular indigenous group].
Part I of their book provides a valuable analysis on how native title may be distinguished from other legal mechanisms for recognising indigenous relations with land. The problem of translating indigenous relations with land into legal rights and interests enforceable within the Australian legal system is also investigated. The current legal framework for native title management is identified in Part II, through an analysis of the formal legislative mechanism created under the Native Title Act (NTA). The limitations of the NTA are also identified. Having investigated and criticised the legislative regime, the authors in Part III develop comprehensive process for designing indigenous institutions to manage native title. They go beyond the limitations of the NTA and seek in their analysis to answer the question 'how might native title institutions be better designed?'
This book provides a comprehensive analysis of an important aspect of native title . . .it is required reading for legal practitioners and others charged with the responsibility of designing indigenous institutions to manage native title, and for law reformers and policy makers with responsibility for the legislation underpinning these institutions.

Australian Law Librarian, Vol 9, 2001


SUPPLEMENTS

Bibliography

This Bibliography is to be used in conjunction with Native Title Corporations.

Copyright The contents of this Supplement are copyright to The Federation Press. All queries should be directed to Federation Press at publishing@federationpress.com.au. However, The Federation Press hereby grants permission to all to download the Bibliography free of charge for the purposes of private study.

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Published October 2000
Publisher The Federation Press
Hardback/400pp
ISBN 9781862873728
Australian RRP $99.00
International Price $90.00
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Aboriginal Studies
Law - Indigenous
Indigenous Studies


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